Citation NR: 9608012
Decision Date: 03/26/96 Archive Date: 04/10/96
DOCKET NO. 94-03 481 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Entitlement to an increased rating for multiple fragment
wounds, mid-line, upper lumbar spine, muscle group XX, with
retained foreign body and with associated reflex sympathetic
dystrophy, currently rated as 40 percent disabling.
2. Entitlement to an increased rating for residuals of
multiple fragment wounds, posterior right arm above the
elbow, major, muscle group VI, with associated reflex
sympathetic dystrophy, currently rated as 30 percent
disabling.
3. Entitlement to an increased rating for residuals of
multiple fragment wounds of the dorsal right wrist, muscle
group VIII, currently rated as 10 percent disabling.
4. Entitlement to an increased rating for residuals of a
gunshot wound of the right thumb, major, currently rated as
10 percent disabling.
5. Entitlement to an increased rating for multiple fragment
wounds of the left gluteal region, muscle group XVII,
currently rated as 10 percent disabling.
6. Entitlement to an increased (compensable) rating for
residuals of multiple fragment wounds of the left lateral
hemothorax area, muscle group XXI.
7. Entitlement to an increased rating for post-traumatic
stress disorder (PTSD), currently rated as 30 percent
disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Associate Counsel
INTRODUCTION
The veteran had active service from August 1967 to August
1969.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from an April 1993 rating decision of the
Buffalo, New York, Regional Office (RO) of the Department of
Veterans Affairs (VA) which denied entitlement to increased
ratings for service-connected multiple fragment wounds, mid-
line, upper lumbar spine, muscle group XX, with retained
metallic foreign body, rated as 20 percent disabling;
multiple fragment wounds, posterior right arm above the
elbow, major, muscle group VI, rated as 10 percent disabling;
multiple fragment wounds of the dorsal right wrist, muscle
group VIII, rated as 10 percent disabling; residuals of a
gunshot wound of the right thumb, major, rated as 10 percent
disabling; fragment wounds of the left gluteal region, muscle
group XVII, rated as 10 percent disabling; and multiple
fragment wounds of the left lateral hemothorax area, muscle
group XXI, rated as non-compensable; and for PTSD, rated as
30 percent disabling.
A notice of disagreement was received in June 1993. The
statement of the case was sent to the veteran in September
1993. The substantive appeal was received in January 1994.
In a February 1995 rating decision, increased ratings were
granted for service-connected multiple fragment wounds, mid-
line, upper lumbar spine, muscle group XX, recharacterized as
“multiple fragment wounds, mid-line, upper lumbar spine,
muscle group XX, with retained foreign body and with
associated reflex sympathetic dystrophy,” rated as 40 percent
disabling; and for service-connected multiple fragment
wounds, posterior right arm above the elbow, major, muscle
group VI, recharacterized as “residuals of multiple fragment
wounds, posterior right arm above the elbow, major, muscle
group VI, with associated reflex sympathetic dystrophy,”
rated as 30 percent disabling. The Board notes that the
United States Court of Veterans Appeals (Court) has held that
a rating decision issued subsequent to a notice of
disagreement which grants less than the maximum available
rating does not "abrogate the pending appeal." AB v. Brown,
6 Vet.App. 35, 38 (1993). Consequently, the matter of an
increased rating for those two disorders remain in appellate
status.
In his substantive appeal, the veteran raised the issue of
entitlement to service connection for headaches, secondary to
service-connected back disability. The Board refers this
issue to the RO for appropriate development.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that increased ratings are warranted for
his service-connected disabilities. In regard to the back,
he asserts that he experiences constant, severe pain which
radiates up the back. He further asserts that his back
swells, he has muscle soreness, muscle spasms, limitations of
motion, and fatigue. He contends that he cannot sit, stand,
or walk for prolonged periods. He also asserts that he has
weakness of the left lower extremity. In regard to his left
buttock, the veteran asserts that it is tender and sore. In
regard to the right wrist, the veteran asserts that he cannot
bend it in certain directions and also experiences limitation
of motion and swelling. In regard to the right thumb, he
contends that the thumb swells and that he cannot make a fist
or hold objects in his right hand. In regard to the right
arm, the veteran contends that the elbow is painful and he
has difficulty lifting objects. He further asserts that the
scar is tender. In regard to his chest, he asserts that the
scar is tender and painful and that he has pain under his
left armpit.
In addition, the veteran contends that his service-connected
PTSD is more severe than represented by the 30 percent
rating. He contends that he has a great deal of difficulty
functioning. He asserts that he feels paranoid and does not
like people in general. He asserts that he avoids shopping
malls and is constantly checking people for weapons. He
further contends that he feels that he cannot turn his back
on others. The veteran indicates that he has poor
concentration and constant thoughts of Vietnam, especially of
one of his platoon buddies dying. He asserted that he has
intrusive thoughts regarding the explosion in which he was
injured.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence does not support
a rating in excess of 40 percent for service-connected
multiple fragment wounds, mid-line, upper lumbar spine,
muscle group XX, with retained foreign body and with
associated reflex sympathetic dystrophy; a rating in excess
of 30 percent for residuals of multiple fragment wounds of
the right upper extremity, with associated reflex sympathetic
dystrophy, and radial nerve damage; a rating in excess of 10
percent for multiple fragment wounds of the dorsal right
wrist, muscle group VIII; a rating in excess of 10 percent
for service-connected residuals of a gunshot wound of the
right thumb, major; a rating in excess of 10 percent for
multiple fragment wounds of the left gluteal region, muscle
group XVII; or a compensable rating for service-connected
residuals of multiple fragment wounds of the left lateral
hemothorax area, muscle group XXI.
Further, it is the decision of the Board that the evidence
supports a rating of 50 percent for the veteran's service-
connected PTSD.
FINDINGS OF FACT
1. The veteran’s service-connected multiple fragment wounds,
mid-line, upper lumbar spine, muscle group XX, with retained
foreign body and with associated reflex sympathetic
dystrophy, is primarily manifested by has widespread
lumbosacral radiculopathies/nerve damage; moderately
decreased range of motion; and a tender 2 inch scar with
minimal loss of tissue; however, the veteran does not have
atrophy of the muscles.
2. The veteran’s service-connected residuals of multiple
fragment wounds of the right upper extremity, with associated
reflex sympathetic dystrophy, and radial nerve damage, is
primarily manifest by slightly impaired function of the elbow
on pronation, difficult upon gripping of the right hand, and
difficulty upon abducting and adducting the right thumb.
3. The veteran’s service-connected multiple fragment wounds
of the left gluteal region, muscle group XVII, is primarily
manifest by a 2 inch scar on the left buttock, which is well-
healed, slightly tender on palpation, and without soft tissue
swelling, redness, inflammation, or deformity.
4. The veteran’s service-connected residuals of multiple
fragment wounds of the left lateral hemothorax area, muscle
group XXI, is asymptomatic, the scar in that area is not
tender or painful on objective demonstration.
5. The veteran's PTSD causes considerable social and
industrial inadaptability.
CONCLUSIONS OF LAW
1. The schedular criteria for a rating of more than 40
percent for service-connected multiple fragment wounds, mid-
line, upper lumbar spine, muscle group XX, with retained
foreign body and with associated reflex sympathetic
dystrophy, have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.56, 4.71, 4.73, 4.124(a), Part 4,
Diagnostic Codes 5320, 8720-8520 (1995).
2. The schedular criteria for a rating of more than 30
percent for service-connected residuals of multiple fragment
wounds of the right upper extremity, with associated reflex
sympathetic dystrophy, and radial nerve damage, have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 4.56, 4.71, 4.73, 4.124(a), Part 4, Diagnostic Codes 5306,
8714-8514 (1995).
3. The schedular criteria for a rating of more than 10
percent for service-connected residuals of multiple fragment
wounds of the dorsal right wrist, muscle group VIII, have not
been met. 38 U.S.C.A. §§ 110, 1155, 5107 (West 1991);
38 C.F.R. §§ 3.951(b), 4.56, 4.71, 4.73, 4.124(a), Part 4,
Diagnostic Code 5308 (1995).
4. The schedular criteria for a rating of more than 10
percent for service-connected residuals of a gunshot wound of
the right thumb, major, have not been met. 38 U.S.C.A.
§§ 110, 1155, 5107 (West 1991); 38 C.F.R. §§ 3.951(b), 4.56,
4.71, 4.73, 4.124(a), Part 4, Diagnostic Code 5309 (1995).
5. The schedular criteria for a rating of more than 10
percent for service-connected multiple fragment wounds of the
left gluteal region, muscle group XVII, have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.71,
4.119, Part 4, Diagnostic Code 7804 (1995).
6. The schedular criteria for a compensable rating for
service-connected residuals of multiple fragment wounds of
the left lateral hemothorax area, muscle group XXI, have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 4.56, 4.71, 4.73, Part 4, Diagnostic Code 5321 (1995).
7. The schedular criteria for a disability rating of 50
percent for PTSD, is warranted. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. §§ 4.7, 4.132, Part 4, Diagnostic
Code 9411 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim as to these issues is well grounded
within the meaning of 38 U.S.C.A. § 5107 (West 1991). That
is, the Board finds that he has presented a plausible claim.
The Board is also satisfied that all relevant facts have been
properly developed and that no further assistance to the
veteran is required to comply with the duty to assist
mandated by 38 U.S.C.A. § 5107 (West 1991).
I. Increased Ratings for Service-Connected Shell Fragment
Wound Disabilities
Where entitlement to compensation has already been
established and increase in disability rating is at issue,
present level of disability is of primary concern. Further,
although a review of the recorded history of a disability
should be conducted in order to make a more accurate
evaluation, the regulations do not give past medical reports
precedence over current findings. Francisco v. Brown, 7
Vet.App. 55, 58 (1994). Therefore, although the Board has
thoroughly reviewed all medical evidence of record, the Board
will focus primarily on the most recent medical findings
regarding the current level of the veteran's service-
connected disabilities.
At the outset, the Board notes that the veteran asserts that
he has arthritis in all of the areas of his service-connected
multiple fragment wounds, however, there is no diagnosis of
arthritis due to the fragment wound injuries of record, as
set forth below. The Board will consider the manifestations
of the service-connected disabilities which have been
attributed to those disabilities.
During service, the veteran sustained a gunshot wound to the
right thumb with residual loss of sensation and weakness of
grip. He also sustained multiple fragment wounds to the
chest, abdomen, back, buttock, and right wrist. It was noted
that he sustained a comminuted fracture of the proximal
phalanx of the thumb involving the joint. It was further
noted that fragments were located in the intra-abdominal left
mid-posterior abdomen. Following service, the veteran
applied for VA compensation benefits. In a November 1969
rating decision, he was granted entitlement to service
connection for residual gunshot wound of the right thumb and
was assigned a 10 percent rating. Thereafter, in July 1970,
the veteran indicated that he was also seeking service
connection for a back disability.
In April 1971, the veteran was afforded a VA examination. At
that time, the veteran reported that during service he was
hit by shrapnel in the back, buttock, chest, right arm, right
wrist, and right thumb. The veteran reported that he had
retained shell fragment wound in his back which still hurt.
He further reported that his right thumb hurt. Physical
examination revealed the presence of the following scars: 1)
a non-tender, healed scar measuring 1 and 3/4 inches over the
middle of the upper lumbar region, which was flexible, was
not inflamed, and exhibited no sinus drainage or impairment
of the underlying structure; 2) a healed, non-tender scar
measuring 2 inches over the upper quadrant of the left
gluteal region which was flexible, was not inflamed, and
exhibited no sinus drainage or impairment of the underlying
structure; 3) a scar measuring 1 and 1/4 by 1 inch in width
in the middle area, lateral left hemithorax which was well-
healed with moderate atrophy, which was flexible, was not
inflamed, and exhibited no sinus drainage or impairment of
the intercostal muscles; 4) a well-healed, non-tender scar
measuring 1 inch in length over the posterior aspect of the
distal third of the right arm just above the elbow, which was
flexible, was not inflamed, and exhibited no sinus drainage
or muscular impairment; 5) a curvilinear well-healed, non-
tender scar measuring 3 inches in length extending from the
dorsal surface to the anterolateral aspect of the distal
third of the right wrist, with slight hypertrophy through its
entire length, which was flexible and exhibited no sinus
drainage or muscular impairment; 6) and a scar measuring 1
and 1/4 inches in length over the volar surface of the right
thumb extending from the base of the metacarpal-phalangeal
joint distally to midway between this joint and the middle
portion of the middle phalanx.
The right thumb scar had a keloid and hypertrophy through its
entire thickness, was moderately flexible, and affected the
flexor pollicus longus or muscle group VII. The distal
phalangeal joint of the right thumb was held in full
extension with complete abolishment of the flexion motion.
Concomitantly, the metacarpal-phalangeal joint of the right
thumb was slightly diminished. The veteran was able to
approximate the thumb to the tip of all the other fingers of
the right hand with the tip of each finger could approximate
the transverse fold of the palm. The veteran stated that
there was a moderate loss of sensation in the distal phalanx
of the right thumb. The grasp of the right hand was slightly
diminished due to the lack of participation of the thumb.
However, the general gripping power in the right hand was
generally well-preserved.
The veteran was afforded x-rays. X-rays of the chest were
normal. X-rays of the lumbar spine revealed that the
vertebral heights and the intervertebral disc spaces were
normal. Two pieces of shrapnel were present with one piece
present posterior to the left of L3 and the other piece
present in the lower left buttock. X-rays of the right thumb
revealed an old, healed fracture involving the proximal
phalanx of the right thumb. The remainder of the bony
structures were normal. There was slight narrowing of the
first metacarpophalangeal joint space. The examiner’s
impression was normal chest, normal lumbar spine with two
pieces of shrapnel present as described, and old healed
fracture with deformity and no angulation of the proximal
phalanx of the right thumb.
Based on the service medical records and the VA examination,
in a subsequent May 1971 rating decision, service connection
was granted for multiple fragment wounds, mid-line, upper
lumbar spine, muscle group XX, rated as 10 percent disabling;
multiple fragment wounds, posterior right arm above the
elbow, major, muscle group VI, rated as non-compensable;
multiple fragment wounds of the dorsal right wrist, muscle
group VIII, rated as non-compensable; residuals of a gunshot
wound of the right thumb, major, rated as 10 percent
disabling; fragment wounds of the left gluteal region, muscle
group XVII, rated as 10 percent disabling; and multiple
fragment wounds of the left lateral hemothorax area, muscle
group XXI, rated as non-compensable.
In October 1974, the veteran was afforded another VA
examination. Physical examination of the right thumb
revealed scars of the right thumb on the palmar surface over
the first metacarpal phalangeal joint measuring 2 and 1/2
centimeters. The scars were not attached nor depressed nor
was there loss of tissue. The thenar muscles appeared
normal, however, the veteran indicated that he could not make
a fist. Gripping power was noted to be decreased. Physical
examination of the right wrist revealed normal dorsiflexion
and palmar flexion; normal radial and ulnar deviation; and
normal pronation and supination. Thus, no functional
impairment of the right wrist was demonstrated. Physical
examination of the chest revealed a scar on the mid axillary
line of the right chest at about the sixth intercostal space
and measuring 4 by 2 centimeters. The scar was flat, not
attached, and there was no discomfort. As such, no
functional impairment was shown. Physical examination of the
back revealed a scar over the lower lumbar spine from L3 to
L5 measuring 3 centimeters which was also flat, not attached,
and not fixed. There was no tissue loss. No functional
impairment was noted. Physical examination of the right
forearm revealed a J-shaped incision from the dorsum curving
over the radial aspect of the forearm which was not fixed nor
depressed. There was no tissue loss nor apparent
dysfunction. There was also a horseshoe-shaped scar which
was made by a branding iron and was not due to the inservice
injury. In addition, on the dorsum of the arm 2 centimeters
above the olecranon was a scar measuring 3 by 1 centimeter
which was not fixed and was flat. There was no adherence to
muscle structures or bone and apparently no discomfort. No
functional impairment of the right arm was noted. Physical
examination of the left buttock revealed that over the left
buttock running transversely in the upper inner quadrant was
a scar 3 centimeters long by 1 centimeter wide which was
flat, not adherent nor depressed nor tender, and which
exhibited no dysfunction. The examiner noted that the
veteran seemed to be exaggerating his symptoms. X-rays were
normal with metallic densities noted in the dorsum of the
base of the right index finger, in the soft tissues adjacent
to the left iliac crest, and in the soft tissues adjacent to
L3.
In a December 1974 rating decision, two increased ratings
were granted for the right wrist and elbow: an increased
rating of 10 percent for multiple fragment wounds of the
dorsal right wrist, muscle group VIII, and a 10 percent
rating for multiple fragment wounds, posterior right arm
above the elbow, major, muscle group VI.
In September 1975, the veteran was afforded another VA
examination. Physical examination of the right thumb
revealed some tissue loss in the fullness of the first
segment of the thumb. In addition, the chief loss of motion
was indicated to be in the interphalangeal joint which was in
a neutral position. However, very good motion was shown in
the first metacarpal and the veteran could adduct the part
sufficient to touch the mid and distal little finger though
not the base of this member. Otherwise, he had good
abduction, normal finger motions, and normal wrist motion.
Physical examination of the right arm revealed that the right
forearm was about 1/8 inch larger in circumference than the
minor arm which was suggestive of a minor loss of the
development of the dominant member. The biceps were of
comparable measurements and there was no limitation of motion
in the elbow. The veteran reported some numbness in the
distal portion of the thumb, but no true anesthetic explained
and it was mentioned that the trophic status was satisfactory
including normal appearance of the thumbnail. Physical
examination of the back was consistent with previous
examination. It was noted that the veteran’s range of motion
was decreased.
In a subsequent April 1977 Board decision, entitlement to an
increased rating for multiple fragment wounds, mid-line,
upper lumbar spine, muscle group XX, with retained metallic
foreign body, was granted and an increased rating of 20
percent was assigned. In addition, entitlement to an
increased rating for residuals of a gunshot wound of the
right thumb, major, was denied. The Board’s decision was
effectuated in an April 1977 rating decision.
In June 1977, the veteran was afforded another VA
examination. The examiner noted that the veteran had been
scheduled for a transection of the flexor pollicis longus
tendon, but the surgery was canceled twice. Physical
examination of the thumb revealed two scars. The veteran
indicated that he was unable to actively flex the
interphalangeal joint although the examiner was able to flex
it passively. The veteran further indicated that he had a
good deal of loss of sensory perception along the sides of
his thumb and distal palmar surface. There were no trophic
changes. The veteran exhibited very good motion in the first
metacarpal bone and the metacarpal phalangeal joint. He
could approximate the thumb to various parts of his fingers
and he exhibited normal finger mobility. Physical
examination of the right wrist revealed decreased motion
measured in dorsiflexion, plantar flexion, ulnar deviation,
and radial deviation. Supination and pronation were normal.
The veteran also indicated that he had sensory loss over the
dorsum of the proximal index finger and corresponding portion
of the dorsum of the hand. There were no trophic changes.
Thereafter, the veteran’s respective ratings were confirmed
and continued for many years. In 1987, the veteran was
involved in a motor vehicle accident. He was subsequently
treated by a private physician. It was noted that following
the accident, the veteran complained of neck pains,
headaches, and increased disability of the back. Physical
examination revealed some tenderness over the left trapezius
muscle. Straight leg raising was mildly positive at 90
degrees on the left side. There was some tenderness in the
lower lumbar area. Neurological examination did not reveal
impairment of the spine. Minimal neurological abnormality
was noted in the left little finger with regard to abnormal
sensation. Further neurological testing revealed a moderate
degree of left ulnar nerve compromise across the elbow,
incidental left median nerve compromise of a mild degree, and
right ulnar nerve neuropathy. These findings were noted to
be due to the motor vehicle accident.
In January 1993, the veteran applied for an increased rating
for his service-connected disabilities. In conjunction with
his claim, 1992 clinical records were submitted which
reflected treatment for chronic low back pain and
radiculitis.
In addition, in March 1993, the veteran was afforded VA
examinations of the spine; scars; joints; bones; muscles; and
hand, thumb and fingers. Physical examinations of the hand
to include the thumb and fingers revealed that the veteran
has difficulty gripping, especially with his thumb. He was
able to pick up a pencil, but was clumsy. There was no
muscle atrophy of the hand, but there was evidence of some
nerve and tendon damage to the thumb. The veteran was able
to touch his thumb to his index and middle fingers and three
quarters away from his ring and one inch away from his small
finger. Physical examinations of the back revealed that the
veteran was able to heel and toe walk. However, he exhibited
difficulty walking on his toes. There was no atrophy of the
muscles and the musculature of the back appeared normal.
Decreased range of motion was exhibited; flexion was limited
to 55 degrees and backward extension was limited to 16
degrees. The veteran reported that his back was painful and
the pain radiated down his legs. He indicated that his legs
felt numb and were worse in cold weather. The examiner
indicated that there was decreased sensation in the toes, but
the ankle and knee reflexes were equal. It was also noted
that the veteran had weakness in the muscles of the legs,
more so on the left. Physical examination of the right arm
revealed no real findings other than a scar above the right
elbow area. The veteran reported muscle pain in the joint
when he turned to the left. There was slightly decreased
pronation of the right elbow as compared to the left elbow.
It was indicated that there was no bony injury to the right
elbow. The scar examination revealed scars of the right
elbow, right hand, left buttock, lumbar area, and in the area
of the posterior axillary line due to the shell fragment
wounds, however, they were not tender, painful, or inflamed.
In addition, there was no keloid formation and no functional
limitation due to the scarring.
Based on the aforementioned March 1993 examination, the
veteran’s prior ratings were confirmed and continued.
Thereafter, additional VA outpatient clinical records were
received which showed continued treatment for disabilities of
the spine, left leg, right arm, and right hand. The veteran
complained of low back pain with radiation down the left leg.
It was noted that the veteran exhibited weakness of the left
leg. Previous assessment of chronic low back pain with
radiculitis was confirmed. Neurological evaluations
indicated that the veteran might have sympathetic dystrophy
of the back and right arm due to the shell fragment wound
injuries. Further electrokymograph (EMG) testing revealed
widespread lumbosacral radiculopathies and possible local
nerve injuries.
In December 1994, the veteran was afforded a special VA
neurological examination per his request for such
examination. At that time, in regard to the back, the
veteran complained of difficulty with lifting, bending,
squatting, climbing stairs, sitting for extended periods, and
walking. He reported that he used a cane for ambulation. He
reported intermittent pain down the left leg; muscle cramping
in the thigh, legs, and back; and difficulty laying on the
left side. In regard to the right hand, the veteran reported
weakness of the right hand with decreased abduction of the
right thumb. On examination, the veteran walked with the
assistance of a cane. He had a slight limp and favored the
left leg. he was unable to walk on his toes and had
difficulty walking on his heels. Examination of the lumbar
spine revealed a 2 inch scar with minimal loss of tissue,
muscle group XX. There was also a similar 2 inch scar in
muscle group XVIII of the left gluteus region. The veteran
forward flexed to 30 degree, hyper-extended to 20 degrees,
laterally to 20 degrees, and rotated to 15 degrees. Straight
leg raising was negative. Physical examination of the upper
extremities showed difficulty with thumb abduction on the
right. There was also some puffiness and swelling of the
right hand and the right upper extremity was cool to the
touch. The examiner noted that there was a question of a
radial nerve injury that may, in fact, be due to the old
shrapnel injury
A review of the EMG data revealed the muscles evaluated
included the left quadriceps, gluteus medius, ham strings,
and tibiales anterior. The findings were consistent with the
same thing, of widespread lumbosacral radiculopathies. It
was felt that local nerve damage, related to the shrapnel
injuries, could not be ruled out. CT scan showed narrowing
of the spinal canal with the absence of epidural fat and
hypertrophy of the ligament of flavum with probable diagnosis
of spinal stenosis. There was also evidence of mild facet
arthropathy. The impression was status post shrapnel wounds
of the lumbar spine, left buttock, and probable right forearm
with residual deficit of one probably reflex, sympathetic
dystrophy involving left lower extremity and less so in the
right upper distal extremity; lumbar stenosis; and lumbar
radiculopathy. The examiner opined that the veteran’s
disabilities were moderately disabling, but noted that the
veteran was able to continue working at his present
employment.
In December 1994, the veteran was also afforded another
examination of his spine. The findings with regard to the
lumbar spine were consistent with the neurological
examination with the addition of the following findings: the
veteran’s 2 inch scar involving muscle group XX was tender on
palpation and the veteran was able to rotate to 20 degrees.
Examination of the left buttock revealed a 2 inch scar
involving muscle group XVII, the left gluteus maximus, which
was well-healed, but slightly tender on palpation. There was
no soft tissue swelling, redness, inflammation, or deformity.
The diagnosis was status post shrapnel wounds of the lumbar
spine and left buttock.
Also of record is an opinion of a VA physician who reviewed
the veteran’s records. The physician noted that there was no
evidence of mechanical injury to the low back due to
scarring. It was noted that if spinal stenosis was
symptomatic, this was a later development and not due to the
service-connected disability. Likewise, he opined that any
increasing symptoms and disability related to the low back
were also not due to the service-connected disability.
However, the physician noted that recent reports suggested
low back nerve injury due to the shrapnel wounds. He
therefore concluded that any disabilities in the region of
the lumbar spine and left buttock could not be disassociated
from the service-connected shrapnel wounds.
Based on the recent medical evidence, increased ratings were
granted for service-connected multiple fragment wounds, mid-
line, upper lumbar spine, muscle group XX, with retained
metallic foreign body, recharacterized as “multiple fragment
wounds, mid-line, upper lumbar spine, muscle group XX, with
retained foreign body and with associated reflex sympathetic
dystrophy,” rated as 40 percent disabling; and for service-
connected multiple fragment wounds, posterior right arm above
the elbow, major, muscle group VI, recharacterized as
“residuals of multiple fragment wounds, posterior right arm
above the elbow, major, muscle group VI, with associated
reflex sympathetic dystrophy,” rated as 30 percent disabling.
The evaluation assigned for a service-connected disability is
established by comparing the manifestations indicated in the
recent medical findings with the criteria in the VA's
Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1995).
In applying the rating criteria, it is also necessary to note
that when there is a question as to which of two evaluations
should be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1995). Although the same
symptoms may not be evaluated under various diagnoses, it is
necessary to determine which rating criteria most closely
approximate the current manifestations of disability.
A slight injury to a muscle group is manifested by a minimum
scar; slight, if any, evidence of fascial defect or of
atrophy or of impaired tonus. No significant impairment of
function and no retained metallic fragments. 38 C.F.R.
§ 4.56(a) (1995).
A moderate injury to a muscle group is manifested by entrance
and (if present) exit scars linear or relatively small and so
situated as to indicate relatively short track of missile
through tissue; signs of moderate loss of deep fasciae or
muscle substance or impairment of muscle tonus, and definite
weakness on comparative tests. A cardinal sign of a moderate
wound is the absence of the explosive effect of a high
velocity missile, and of residuals of debridement or of
prolonged infection. 38 C.F.R. § 4.56(b) (1995).
A moderately severe injury to a muscle group is manifested by
entrance and (if present) exit scars relatively large and so
situated as to indicate track of missile through important
muscle groups. Further, there are indications on palpation
of moderate loss of deep muscle substance or moderate loss of
normal firm resistance of muscles compared with the sound
side. Tests of strength and endurance of muscle groups
involved give positive evidence of marked or moderately
severe loss. A cardinal sign of a moderately severe
disability is evidence of a through and through deep
penetrating wound by high velocity missile of small size or
large missile of low velocity, with debridement or with
prolonged infection or with sloughing of soft parts,
intermuscular cicatrization. 38 C.F.R. § 4.56(c) (1995).
When the injury involves a through and through or deep
penetrating wound due to a high velocity missile or large or
multiple low velocity missiles, to the explosive effect of
high velocity missile, or to a shattering bone fracture with
extensive debridement or prolonged infection and sloughing of
soft parts, intermuscular binding, and cicatrization, and
the history as noted for moderately severe disability is
aggravated, severe disability is indicated. Objective
findings include extensive ragged, depressed, and adherent
scars of skin so situated as to indicate wide damage to
muscle groups by the track of the missile. X-rays might show
minute, multiple, scattered foreign bodies, indicating the
spread of intermuscular trauma and the explosive effects of
the missile. Palpation would reveal moderate or extensive
loss of deep fasciae or muscle substance, with soft or flabby
muscles in the wound area. Tests of strength, endurance
compared with the sound side, or coordinated movements would
show positive evidence of severe impairment of function.
Reaction of degeneration would not be present in electrical
tests, but a diminished excitability to faradic current,
compared with the sound side, may be present. Visible or
measured atrophy may be present, with adaptive contractions
or the opposing groups of muscles, if present, indicating
severity. Adhesion of the scar to one of the lone bones,
scapula, pelvic bones, sacrum, or vertebra, with epithelial
sealing over the bone without true skin covering, in an area
where bone is normally protected by muscle, indicates the
severe type of muscle damage. Atrophy of muscle groups not
included in the track of the missile, particularly of the
trapezius and serratus in wounds to the shoulder girdle
(traumatic muscular dystrophy), and induration and atrophy of
an entire muscle following simple piercing by a projectile
(progressive sclerosing myositis), may be included in the
severe group if there is sufficient evidence of severe
disability. 38 C.F.R. § 4.56(d) (1995).
A. Multiple Fragment Wounds, Mid-Line, Upper Lumbar Spine,
Muscle Group XX, With Retained Foreign Body and With
Associated Reflex Sympathetic Dystrophy
The veteran asserts that a rating in excess of 40 percent is
warranted for this disability. He asserts that he
experiences constant, severe pain which radiates up the back.
He further asserts that his back swells, he has muscle
soreness, muscle spasms, limitations of motion, and fatigue.
He contends that he cannot sit, stand, or walk for prolonged
periods. He also asserts that he has weakness of the left
lower extremity.
The medical evidence shows that the veteran does not have
atrophy of the muscles and the musculature of the back
appears normal. He exhibits moderately decreased range of
motion. The veteran has a tender and painful 2 inch scar
with minimal loss of tissue, muscle group XX, but exhibits no
mechanical injury to the low back due to scarring. The
veteran has widespread lumbosacral radiculopathies and the
nerve damage cannot be disassociated from the shrapnel
injuries. It was noted that he has associated reflex
sympathetic dystrophy.
The veteran is currently rated under Diagnostic Code 5320-
8720. Diagnostic code 5320 is the code used for an injury to
the spinal muscles (Muscle Group XX). The spinal muscles are
responsible for the postural support of the body, and
extension and lateral movements of the spine. Under
Diagnostic Code 5320, a 40 percent rating is appropriate when
the disability of the lumbar spine is moderately severe and a
60 percent rating is appropriate when the disability of the
lumbar spine is severe. Diagnostic Code 8720-8520 addresses
neuralgia pertaining to the sciatic nerve. Under that code,
a 40 percent rating is appropriate for moderately severe
incomplete paralysis and a 60 percent rating for severe
incomplete paralysis with marked muscular atrophy.
In order for the veteran to warrant a higher rating under
Diagnostic code 5320, his lumbar spine disorder would have to
cause severe disability. As noted, 38 C.F.R. § 4.56(d)
(1995) provides guidance on determining the level of
disability caused by healed wounds involving muscle groups
due to gunshot or other trauma. The objective criteria is
set forth above. Upon a review of this criteria, it is clear
that the veteran does not meet the necessary requirements for
severe disability. He does not have atrophy of the muscles,
the musculature of the back appears normal, and there is
minimal tissue loss. His scars, though tender, are not
extensive ragged, depressed, or adherent. The medical
evidence shows that his primary disability involves nerve
damage. In order for the veteran to warrant a higher rating
on that basis, under Diagnostic Code 8720-8520, the evidence
would have to show severe incomplete paralysis with marked
muscular atrophy of the sciatic nerve. However, the veteran
does not have marked muscular atrophy of the sciatic nerve.
As such, a higher rating on that basis also is not in order.
Accordingly, the Board concludes that the schedular criteria
for a rating of more than 40 percent for service-connected
multiple fragment wounds, mid-line, upper lumbar spine,
muscle group XX, with retained foreign body and with
associated reflex sympathetic dystrophy, have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.56,
4.71, 4.73, 4.124(a), Part 4, Diagnostic Codes 5320, 8720-
8520 (1995).
The Board has also considered an extra-schedular evaluation
under the provisions of 38 C.F.R. § 3.321 (1995), but does
not find the disability picture so unusual as to render
impractical the regular schedular standards. In this regard,
the Board notes that the veteran did not have frequent
periods of hospitalization for this service-connected
disability nor has marked interference with employment been
demonstrated. In that regard, it was noted that the veteran
is currently able to maintain his present employment.
B. Residuals of Multiple fragment Wounds to the Right Upper
Extremity (Residuals of Multiple Fragment Wounds, Posterior
Right Arm Above the Elbow, Major, Muscle Group VI, With
Associated Reflex Sympathetic Dystrophy; Residuals of
Multiple Fragment Wounds of the Dorsal Right Wrist, Muscle
Group VIII; and Residuals of a Gunshot Wound of the Right
Thumb, Major)
The veteran asserts that increased ratings are warranted for
these disabilities. In regard to the right wrist, the
veteran asserts that he cannot bend it in certain directions
and also experiences limitation of motion and swelling. In
regard to the right thumb, he contends that the thumb swells
and that he cannot make a fist or hold objects in his right
hand. In regard to the right arm, the veteran contends that
the elbow is painful and he has difficulty lifting objects.
He further asserts that the scar is tender.
The medical evidence shows that the veteran has reflex
sympathetic dystrophy of the right upper extremity, although
less so than in the left lower extremity. The veteran
exhibits slightly decreased pronation of the right elbow as
compared to the left elbow, however, there is no bony injury
to the right elbow. In regard to the right wrist and hand,
it was noted on examination that the veteran has difficulty
gripping, especially with his thumb. He was able to pick up
a pencil, but was clumsy. There was no muscle atrophy of the
hand, but there was evidence of some nerve and tendon damage
to the thumb. The veteran was able to touch his thumb to his
index and middle fingers, touch three quarters away from his
ring, and touch one inch away from his small finger.
Physical examination of the right upper extremity showed
difficulty with thumb abduction and adduction on the right.
There was also some puffiness and swelling of the right hand
and the right upper extremity was cool to the touch. It
appears that the examiner attributed radial nerve damage to
the inservice shrapnel injury.
The veteran’s disability of the right upper extremity is
currently rated under Diagnostic Code 5306-8714. Diagnostic
Code 5306 is the code used for an injury to the extensor
muscles of the elbow (Muscle Group VI.) Under Diagnostic
Code 5306 for the major extremity, a 30 percent rating is
appropriate when the disability is moderately severe and a 40
percent rating is appropriate when the disability is severe.
Diagnostic Code 8714-8514 addresses neuralgia pertaining to
the radial nerve. Complete paralysis is manifest by drop of
hand and fingers, wrist and fingers perpetually flexed, the
thumb adducted falling within the line of the outer border of
the index finger; cannot extend hand at wrist, extend
proximal phalanges of fingers, extend thumb, or make lateral
movement of wrist; supination of hand, extension and flexion
of elbow weakened, the loss of synergic motion of extensors
impairs the hand grip seriously; total paralysis of the
triceps occurs only in the greatest rarity. incomplete
paralysis indicates a degree of lost or impaired function
substantially less that the type picture for complete
paralysis. For the major arm, under that code, a 30 percent
rating is appropriate for moderate incomplete paralysis and a
50 percent rating for severe incomplete paralysis.
In order for the veteran to warrant a higher rating under
Diagnostic code 5306, his upper right extremity disorder
would have to cause severe disability. As noted, 38 C.F.R. §
4.56(d) (1995) provides guidance on determining the level of
disability caused by healed wounds involving muscle groups
due to gunshot or other trauma. The objective criteria is
set forth above. Upon a review of this criteria, it is clear
that the veteran does not meet the necessary requirements for
severe disability. There is no tissue loss nor apparent
dysfunction due to muscular damage of the right upper
extremity. His scar was noted by the examiner to be not
tender, painful, or inflamed, it is not extensive ragged,
depressed, or adherent.
In this case, the medical evidence shows that the veteran’s
primary disability involves radial nerve damage. As such,
the veteran’s disability of the right upper extremity was
rated pursuant to that nerve injury under Diagnostic Code
8714. However, the medical evidence further reflects that
the nerve damage apparently affects not only the function of
the right elbow, but also the function of the right wrist and
right hand to include fingers and thumb. This impairment of
function was attributed to nerve damage as opposed to muscle
injury. However, the veteran has been rated separately for
the right wrist and the right thumb under diagnostic codes
governing muscle injuries. The regulations provide that the
evaluation of the same disability under various diagnoses is
to be avoided. The evaluation of the same manifestation
under different diagnoses is to be avoided. 38 C.F.R. § 4.14
(1995). The Board finds that since the veteran’s current
disability is caused by radial nerve injury, the appropriate
rating is a rating under the diagnostic code governing radial
nerve damage and that all manifestations of the injury to the
radial nerve should be taken into consideration under that
code. Nevertheless, the separate ratings for the right wrist
and thumb have been in effect for over twenty years, and as
such are protected from reduction. 38 U.S.C.A. § 110 (West
1991); 38 C.F.R. § 3.951(b) (1995). Therefore, although the
veteran’s disability of the radial nerve, to include
manifestations of the right wrist and thumb, will be
considered in conjunction with the rating for the right upper
extremity, the 10 percent ratings under Diagnostic Codes 5308
and 5309 for service-connected residuals of multiple fragment
wounds of the dorsal right wrist, muscle group VIII and for
residuals of a gunshot wound of the right thumb, major,
respectively, shall remain in effect. However, as their
manifestations are included under the rating for service-
connected right upper extremity, higher ratings are not in
order.
In order for the veteran to warrant a higher rating for
service-connected residuals of multiple fragment wounds of
the right upper extremity, with associated reflex sympathetic
dystrophy, and radial nerve damage, under Diagnostic Code
8714-8514, the evidence would have to show severe incomplete
paralysis of the radial nerve. In this case, the veteran
exhibits no more that moderate incomplete paralysis. The
veteran exhibits slightly impaired function of the elbow on
pronation, but most of his impairment involves his thumb and
ability to grip with his right hand. The medical evidence
shows that the veteran has difficulty gripping his right hand
and abducting and adducting his thumb, although he is able to
pick up a pencil and otherwise manipulate his thumb. No
limitation of motion of the wrist, hand, or fingers is
indicated.
Accordingly, the Board concludes that the schedular criteria
for a rating of more than 30 percent for service-connected
residuals of multiple fragment wounds of the right upper
extremity, with associated reflex sympathetic dystrophy, and
radial nerve damage, have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. §§ 4.56, 4.71, 4.73, 4.124(a),
Part 4, Diagnostic Codes 5306, 8714-8514 (1995).
The Board has also considered an extra-schedular evaluation
under the provisions of 38 C.F.R. § 3.321 (1995), but does
not find the disability picture so unusual as to render
impractical the regular schedular standards. In this regard,
the Board notes that the veteran did not have frequent
periods of hospitalization for this service-connected
disability nor has marked interference with employment been
demonstrated. In that regard, it was noted that the veteran
is currently able to maintain his present employment.
C. Multiple Fragment Wounds of the Left Gluteal Region,
Muscle Group XVII
The veteran asserts that a rating in excess of 10 percent is
warranted for this disability. He asserts that the scar in
the injured area of the left buttock is tender and sore.
The medical evidence shows that the veteran has a 2 inch scar
on his left buttock, involving muscle group XVII, the left
gluteus maximus, which was well-healed, but slightly tender
on palpation. There was no soft tissue swelling, redness,
inflammation, or deformity.
The veteran is currently rated under Diagnostic Code 7804.
Under that code, scars which are superficial, tender and
painful on objective demonstration are rated as 10 percent
disabling. In this case, the medical evidence confirms that
the veteran’s scar is slightly tender on palpation and he
asserts that it is painful. There is no medical evidence
showing other functional impairment. As such, the Board
finds that the current 10 percent rating adequately
encompasses his disability.
Accordingly, the Board concludes that the schedular criteria
for a rating of more than 10 percent for service-connected
multiple fragment wounds of the left gluteal region, muscle
group XVII, have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.71, 4.119, Part 4, Diagnostic
Code 7804 (1995).
The Board has also considered an extra-schedular evaluation
under the provisions of 38 C.F.R. § 3.321 (1995), but does
not find the disability picture so unusual as to render
impractical the regular schedular standards. In this regard,
the Board notes that the veteran did not have frequent
periods of hospitalization for this service-connected
disability nor has marked interference with employment been
demonstrated. In that regard, it was noted that the veteran
is currently able to maintain his present employment.
D. Residuals of Multiple Fragment Wounds of the Left Lateral
Hemothorax Area, Muscle Group XXI
The veteran asserts that a compensable rating is warranted
for this disability. He asserts that the scar is tender and
painful and that he has pain under his left armpit.
The medical evidence shows that the veteran has a scar in the
area of the posterior axillary line due to the shell fragment
wounds to the chest, however, the scar was not tender,
painful, nor inflamed. In addition, there was no keloid
formation and no functional limitation due to the scarring.
The Board notes that the veteran is rated under Diagnostic
Code 5321. Although Diagnostic Code 5320 was listed by the
RO, it is clear that the veteran sustained a gunshot wound to
Muscle Group XXI which is rated under Diagnostic Code 5321.
Under that code, slight disability involving the muscles of
respiration is rated as non-compensable; moderate disability
is rated as 10 percent disabling; and moderately severe or
severe disability is rated as 20 percent disabling.
Alternatively, if the veteran has a scar which is
superficial, tender and painful on objective demonstration,
he may be rated as 10 percent disabling under Diagnostic Code
7804.
In this case, the veteran’s injury to Muscle Group XXI is
asymptomatic. He has a scar in the area of the posterior
axillary line, however, it is not tender and painful on
objective demonstration. Thus, a higher rating for service-
connected residuals of multiple fragment wounds of the left
lateral hemothorax area, muscle group XXI is not warranted.
Accordingly, the Board concludes that the schedular criteria
for a compensable rating for service-connected residuals of
multiple fragment wounds of the left lateral hemothorax area,
muscle group XXI, have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. §§ 4.56, 4.71, 4.73, Part 4,
Diagnostic Code 5321.
The Board has also considered an extra-schedular evaluation
under the provisions of 38 C.F.R. § 3.321 (1995), but does
not find the disability picture so unusual as to render
impractical the regular schedular standards. In this regard,
the Board notes that the veteran did not have frequent
periods of hospitalization for this service-connected
disability nor has marked interference with employment been
demonstrated. In that regard, it was noted that the veteran
is currently able to maintain his present employment.
II. PTSD
As noted, where entitlement to compensation has already been
established and increase in disability rating is at issue,
present level of disability is of primary concern. Further,
although a review the recorded history of a disability should
be conducted in order to make a more accurate evaluation, the
regulations do not give past medical reports precedence over
current findings. Francisco. Therefore, although the Board
has thoroughly reviewed all medical evidence of record, the
Board will focus primarily on the most recent medical
findings regarding the current level of the veteran's PTSD.
The veteran was originally granted entitlement to service
connection for PTSD in a February 1991 rating decision. He
was assigned a 10 percent rating effective from June 29,
1990. The grant was based on a finding that the veteran
served in combat and was diagnosed as having PTSD in
September 1990. Thereafter, in a September 1991 rating
decision, the veteran was granted an increased rating of 30
percent for his PTSD. Since additional medical evidence had
been received which showed that the veteran’s PTSD had been
more severe than originally reflected in the 10 percent
rating, the veteran was assigned the 30 percent rating
effective from June 29, 1990.
In January 1993, the veteran sought an increased rating for
his service-connected PTSD. In support of his claim, he
submitted a letter from his private physician, Albert K.
Chen, M.D., in which Dr. Chen stated that, in the past 6
months, the veteran experienced a traumatic change in his
career since he lost his job. Dr. Chen opined that his job
loss triggered and compounded his symptoms. The veteran
became easily suspicious, anxious, guarded, and vigilant. He
felt that he was being short-changed by others and also felt
distrustful. He experienced insomnia, depressed mood,
irritability, and unnecessary outbursts of emotion. The
veteran began to reexperience memories of Vietnam and had
experienced negative feelings toward Vietnamese people in his
life today.
In conjunction with his claim, the veteran was afforded a VA
psychiatric examination in March 1993. The examiner reviewed
the veteran’s medical history. At the time of examination,
the veteran reported that he had recently sought treatment
because he had a great deal of difficulty functioning. He
related that he felt paranoid and did not like people in
general. He indicated that he avoided shopping malls and was
constantly checking people for weapons. He stated that he
felt that he couldn’t turn his back on others. The veteran
reported having poor concentration and constant thoughts of
Vietnam. He described intrusive thoughts regarding the
explosion in which he was injured. The veteran indicated
that he was married for the fourth time and had recently lost
his job. He indicated that he had a hatred for the people at
his former employment, but noted that his psychiatrist was
helping him work through those feelings and get over them.
Mental status examination revealed that the veteran was at
first calm and quiet. He became quite verbal, erudite, and
expressed himself well. As the interview continued, he
became more disjointed, increasingly agitated, and quite
angry. He talked about hurting others and getting revenge
upon the workers at the radio station where his employment
was terminated. There was no evidence of a major though
disorder and his judgment appeared fair. The diagnosis was
post-traumatic stress disorder, chronic, delayed.
Currently, the veteran contends that his disability is more
disabling than is represented by the 30 percent rating. The
veteran’s psychiatric disability currently characterized as
PTSD is rated under Diagnostic Code 9411. Under Diagnostic
Code 9411, the rating schedule provides a 30 percent rating
for PTSD where there is definite impairment in the ability to
establish or maintain effective and wholesome relationships
with people; and with psychoneurotic symptoms which result in
such reduction in initiative, flexibility, efficiency and
reliability levels as to produce definite industrial
impairment. The rating schedule provides a 50 percent rating
for PTSD where the ability to establish or maintain effective
or favorable relationships with people is considerably
impaired; and in which by reason of psychoneurotic symptoms
the reliability, flexibility and efficiency levels are so
reduced as to result in considerable industrial impairment.
The rating schedule provides a 70 percent rating for PTSD
where the ability to establish or maintain effective or
favorable relationships with people is severely impaired; and
in which the psychoneurotic symptoms are of such severity and
persistence that there is severe impairment in the ability to
obtain or retain employment. The rating schedule provides a
100 percent rating for PTSD where there the attitudes of all
contacts except the most intimate are so adversely affected
as to result in virtual isolation in the community; in which
totally incapacitating psychoneurotic, symptoms are bordering
on gross repudiation of reality with disturbed thought or
behavioral processes associated with almost all daily
activities such as fantasy, confusion, panic and explosions
of aggressive energy resulting in profound retreat from
mature behavior; and in which the veteran is demonstrably
unable to obtain or retain employment. 38 C.F.R. Diagnostic
Code 9411 (1995).
Additionally, in reviewing the veteran's disorder under
Diagnostic Code 9411, the Board must consider The United
States Court of Veterans Appeals' (Court) determination in
Hood v. Brown, 4 Vet.App. 301 (1993). In Hood, the Court
stated that the term "definite" in 38 C.F.R. § 4.132 (West
1993), was "qualitative" in character, and invited the Board
to "construe" the term "definite" in a manner that would
quantify the degree of impairment for purposes of meeting the
statutory requirement that the Board articulate "reasons or
bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West
1991). In a precedent opinion dated November 9, 1993, the
General Counsel of the VA concluded that "definite" is to be
construed as "distinct, unambiguous, and moderately large in
degree." It represents a degree of social and industrial
inadaptability that is "more than moderate but less than
rather large." VAOPGCPREC 9-93 (O.G.C. Prec. 9-93). The
Board and the RO are bound by this interpretation of the term
"definite." 38 U.S.C.A. § 7104(d)(1) (West 1991).
Based on the evidence as outlined above, the Board finds that
the veteran's service-connected psychiatric disability
renders him considerably impaired both socially and
industrially such that a 50 percent evaluation is warranted.
A review of the recent medical evidence, to include the VA
examination and Dr. Chen’s report, reveals that the veteran
has increased symptomatology following the termination of his
employment at a radio station. This action negatively
impacted his disability as described in the two reports.
Resolving all reasonable doubt in favor of the veteran, the
Board finds that a 50 percent evaluation most closely
approximates the level of dysfunction experienced by the
veteran such that an increased evaluation is in order.
However, since a higher evaluation for PTSD contemplates a
disorder characterized by at least severe social and
industrial impairment, the Board is unable to conclude that
the present scenario is such that a higher evaluation is
warranted. The veteran is married and has remained married
for the last 10 years. Although he obviously has some
difficulties getting along with others, he is presently
working through those problems and has experienced some
initial success with the assistance of his psychiatrist. In
addition, according to recent records, is currently employed.
As such, the Board finds that although the veteran's PTSD
causes considerable social and industrial inadaptability, it
is not productive of a severe impairment.
Accordingly, the Board concludes that the schedular criteria
for a disability rating of 50 percent for PTSD, is warranted.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7,
4.132, Part 4, Diagnostic Code 9411 (1995).
The Board has also considered an extra-schedular evaluation
under the provisions of 38 C.F.R. § 3.321 (1995), but does
not find the disability picture so unusual as to render
impractical the regular schedular standards. In this regard,
the Board notes that the veteran did not have frequent
periods of hospitalization for this service-connected
disability nor has marked interference with employment been
demonstrated. In that regard, it was noted that the veteran
is currently able to maintain his present employment.
ORDER
The appeal as to the issue of increased ratings for multiple
fragment wounds, mid-line, upper lumbar spine, muscle group
XX, with retained foreign body and with associated reflex
sympathetic dystrophy; residuals of multiple fragment wounds,
posterior right arm above the elbow, major, muscle group VI,
with associated reflex sympathetic dystrophy; residuals of
multiple fragment wounds of the dorsal right wrist, muscle
group VIII; residuals of a gunshot wound of the right thumb;
multiple fragment wounds of the left gluteal region, muscle
group XVII; and for residuals of multiple fragment wounds of
the left lateral hemothorax area, muscle group XXI, is
denied.
Entitlement to a 50 percent evaluation for PTSD is granted,
subject to the law and regulations governing the payment of
monetary benefits.
EUGENE A. O’NEILL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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